The rolling maul of the COVID-19 response

Since the start of the COVID-19 pandemic, the Faculty of Law’s Associate Professor Dean Knight has commentated on the legalities of pandemic-related restrictions in Aotearoa New Zealand.

The public and government law specialist has published on the democratic legitimacy of the elimination strategy, Aotearoa’s national legal response as part of Oxford University Press’s Lex Atlas COVID-19 encyclopaedia project, and the different ways the Government has been held to account for its work. He also frequently live tweets relevant court cases such as Borrowdale v Director-General of Health and recent challenges to vaccination mandates.

“Court watching has always been one of the bits of service the Faculty of Law has provided. It’s useful especially now because everything is so dynamic,” says Associate Professor Knight. We are all craving the up-to-date takes and analysis, he explains, and social media gives a vehicle to allow the experts to get to the audience quickly and directly.

The Government’s use of social media has also developed through the most recent phase of the pandemic, he says, and that engagement is to be welcomed. The pandemic has increased thirst for knowledge, data, reason, and justification.

“As well as more responsive social media, we are getting more timely access to cabinet papers—this is revolutionary in the common law world. But we need to keep the pressure on as there’s been some slippage recently.”

Aotearoa’s response to the pandemic has changed as the Government has needed to react to the most recent developments—and the legislation underpinning this response has changed as well.

“I’ve always thought of the response as a rolling maul,” says Associate Professor Knight. “One of the most significant changes last year was ministerial dynamics following the election: a Minister for COVID-19 Response, changes to Cabinet committees, and changes to the faces sitting around the Cabinet table.

“Something I find interesting but not surprising is the fact Director-General of Health Ashley Bloomfield appeared at Cabinet 17 times this year, for instance. It’s unusual in the context of government as a whole, but in a pandemic it’s a natural way for things to have evolved, to make sure the Cabinet is apprised of his position before making decisions on alert levels for instance.”

There have also been some questions asked about the accountability of ministers during the pandemic, especially the role select committees play in exacting accountability, which Associate Professor Knight and researcher Maisy Bentley have investigated . “We followed the first 20 select committees that happened while the House wasn’t sitting in August and looked at the time allocated to questions from the Opposition and the Government. We found that Opposition members were getting the bulk of that time, to interrogate ministers and key officials, and immediately shared those findings on Twitter.”

The Borrowdale case interested him because of what it tells us about the ‘rule of law’. He says the pandemic has challenged our established understanding of the nature of law and regulation, because the Government’s response used a mode and a magnitude of regulation we don’t normally see.

“During the pandemic, the way the Government regulates has had to change to reflect circumstances and has been extraordinary—all the nudges, the language, and the way in which guidance and commands were disseminated was fascinating,” says Associate Professor Knight.

“Law is about changing behaviour, and how law changes behaviour is complex. Are we following the law for the sake of it, or are we doing it because we trust Jacinda Ardern, for instance? And are our fundamental rights being unduly limited? It’s hard, because you can’t say the pandemic justifies everything. On the other hand, nor can you say that we wish things would been done the same way they’ve always been done.”

Since the COVID-19 Public Health Response Act 2020 commenced in May 2020, the Government has had a more forceful set of powers, but a clearer mandate to make sure those powers are used appropriately, he says.

“So the legal underpinnings are there. But the question of rights has always been left at large. While the Government has tried to make sure everything that’s done is defensible in rights terms, the latter part of 2021 has added more pressure to the mix. Managed isolation and quarantine is unravelling, and there are vaccination mandates coming in, making some of the rights questions even more complicated.”

He thinks we may see a few more successful legal challenges around the margins, but the core government measures are usually built on a solid foundation and balance individual rights, especially through the existence of exemptions for complex situations.

He thinks Aotearoa’s legal response and rule making are a lot clearer than that elsewhere in the world, where there have been more “unduly fine distinctions” about what you can and can’t do. “The Parliamentary Counsel’s office, which drafts rules that work, is a bit of an unsung hero of the pandemic. It is ensuring these are rules that average folk can comply with and deliver on.”

And, unlike in other countries, the New Zealand Police have been cautious about the exercise of coercive powers, he says. “While there have been more arrests and prosecutions since the August 2021 lockdown, this is to be expected as the Police have slowly escalated their response as time goes on.”

Associate Professor Knight thinks this is because Andrew Coster, the Police commissioner, recognises the need for social licence for lockdown and other measures. “I think this is why we haven’t seen police closing down the anti-vaccination, anti-lockdown protests.”

In October 2021, the Government announced that when 90 percent of eligible people in all district health boards are vaccinated, we will shift away from the current alert level system and into a traffic light system around COVID-19.

“The transition, and the arc of the Government’s response is crucial to understanding all the legal measures. We went from elimination across the whole motu, to aggressive suppression in Auckland and elimination elsewhere, and we will soon move to suppression nationwide. Those changes required the reassessment of the justification calculus for all the legal measures.”

As we move to a new period of COVID-19 legislation, says Associate Professor Knight, we move into the twilight zone of personal risk assessment.

“This highlights some of the pluralism within our society. There are some people who think they are bulletproof and will do whatever, and just don’t worry about others. But there are others who are cautious and crave the cotton wool. I don’t know how that’s going to play out, and while law will frame it, it won’t speak to it, because there will always be choices that need to be made by individuals.”

Associate Professor Dean Knight